North is problem British government refuses to face

The current internecine divisions in the British cabinet and the Conservative party center on trade and economics; customs union or not, single market or not?

Unsurprisingly no-one in the Conservative party mentions human rights or indeed any kind of rights.

After all, isn’t Theresa May keen to get rid of the Human Rights Act and isn’t she going to ditch the EU’s Fundamental Charter of Human Rights?

Human rights are vital aspects of the Good Friday Agreement especially as they relate to equality and diversity here. How can they be guaranteed?

At present the EU27 are translating December’s Joint Report into legally binding language but all that exercises the British and Irish governments is how leaving the customs union can be done without producing a [hard] Border. It can’t, so the British agreed in December to maintain full regulatory alignment for 48 hours until they got home.

You may not realize it but the same Joint Report contains a lot about the rights of Irish citizens living in The North who will retain all their rights as EU citizens.

Ten days ago Judge Anthony Collins SC, Chamber President of the General Court of the EU, gave an illuminating lecture on those rights. Noel Whelan in the Irish Times, himself a barrister, pointed out that Collins had raised “scenarios with dramatic legal, diplomatic, political implications”. As Whelan says, they all need urgent consideration.

What did Collins say? First, since the Good Friday Agreement binds both the UK and Ireland the UK is under an obligation to ensure that Brexit will have no negative consequences for the operation of the GFA. Secondly, paragraph 2 of the Joint Report commits the UK to protecting the entirety of the GFA and its application in practice. Third, quoting Michel Barnier, if the Joint Report can’t be put into legally binding language there’ll be no transition deal.

On rights, paragraph 52 states that Irish citizens living in The North will continue to enjoy rights as EU citizens. Furthermore the withdrawal treaty should be “without prejudice to the rights, opportunities and identity that come with European Union citizenship for such people and, in the next phase of negotiations, will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits”. It’s clear from the Joint Report that Irish citizens here will not only enjoy existing EU rights but also any future rights the EU may create. Therein lies the problem.

Collins cites Lord Neuburger, President of the UK Supreme Court, ‘our precious and much vaunted legal rights are of no value if we cannot enforce them.’ If there is to be no diminution of the rights of EU citizens in The North, how can they protect or enforce those rights against this appalling British government which intends to abolish many of their citizens’ rights? How, if the UK repudiates the jurisdiction of the European Court of Justice (ECJ)?

Collins suggests various options including the UK giving EU law a position in law in The North, setting up a new EU-UK court to settle disputes, or allow Northern Ireland courts to refer cases to the ECJ.

None of these is likely to commend itself to anyone in this British government. Yet EU law must continue to have some operational role in The North. How else can Irish citizens exercise and defend their rights? As Collins points out, it’s not only Irish citizens. Would the UK be able to discriminate against non-Irish EU citizens here? He asks, ‘how is it possible to distinguish between [the rights of] an EU citizen of Claudy, Coleraine, Cork or Corinth who resides in Northern Ireland?’

Finally EU law states, ‘every citizen shall have the right to participate in the democratic life of the Union.’ Every citizen has a specific right to vote in European Parliament elections. After Brexit Irish citizens in The North will be disenfranchised. According to Collins, that situation ‘is highly unsatisfactory if not illegal’.

How is paragraph 52 of the Joint Report’s ‘arrangements to give effect to the ongoing exercise of and access to EU rights, opportunities and benefits’ going to be translated into legally binding language the British will accept?

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